Opinion
No. 6-153 / 05-0593
Filed April 12, 2006
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
Defendant appeals his conviction for attempted burglary in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan, J., and Schechtman, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
The State's witnesses were Susan Berge and her two sons, William, age twenty-six, and Dustin, age sixteen. Their testimony indicated that Polson had been dating Berge for a few months. Neither William nor Dustin approved of Polson. Each of them had experienced vocal and physical confrontations with him.
On the morning of August 9, 2004, Polson called Berge threatening the sons and asking to talk with them. This was a repeat of the previous evening's calls to her. Polson was told that Berge's sons did not wish to visit with him, and that she did not want Polson to come over to cause trouble. Soon Polson was observed across the street from Berge's residence yelling insults and daring William and Dustin to go to a nearby park to fight, where he would slice someone's throat.
Berge's front entrance consisted of an outside combination screen (upper) and glass (lower) door. The screen door was closed with the inside, wooden door ajar. William stood between the inside door and the outside door. Polson approached rapidly, running with a knife extended. He plunged the knife through the screen near to where William was standing. Berge closed the inside door, locked it, and called 911. Polson proceeded to shatter the glass on the bottom portion of the outside door. Polson fled after tossing the knife into some bushes.
Polson was eventually apprehended and the knife was retrieved. Polson was charged with attempted burglary in the first degree, in violation of Iowa Code sections 713.2 and 713.4 (2003), harassment in the first degree, in violation of section 708.7(2), and impersonating a public official, in violation of section 718.2.
At trial, Polson testified that Susan called him on August 9, 2004, asking him to obtain some beer and come over; that when he arrived William told him "to come on in so he could kick my ass." Polson stated that he became angry and stabbed the screen door. He admitted breaking the glass. Polson testified he did not have the intent to assault anyone inside the house and "wasn't trying to break into their house and hurt nobody."
At the close of the State's evidence, and again at the close of all of the evidence, Polson moved for a judgment of acquittal. His sole ground was the State did not sufficiently show an intent to commit an assault in the house. The district court denied the motions. The jury found Polson guilty of all three charges. Polson was sentenced to consecutive terms of imprisonment of ten years, two years, and two years on the charges, respectively. Polson now appeals his conviction for attempted burglary in the first degree.
II. Standard of Review
We review issues regarding the sufficiency of the evidence for correction of errors at law. State v. Taylor, 689 N.W.2d 116, 133 (Iowa 2004). A jury's verdict is binding on appeal if it is supported by substantial evidence. State v. McFarland, 598 N.W.2d 318, 320 (Iowa Ct.App. 1999). Evidence is substantial if it could convince a rational jury of the defendant's guilt beyond a reasonable doubt. State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004). "In assessing the sufficiency of the evidence, we consider all of the evidence in the record, but we view the evidence in the light most favorable to the State." Id.
III. Merits
Attempted burglary is defined in section 713.2 as follows:
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license, or privilege to do so, attempts to enter an occupied structure, the occupied structure not being open to the public . . . commits attempted burglary.
Thus, the State has the burden to show that a defendant intended to commit a felony, assault or theft. See Taylor, 689 N.W.2d at 133. In the present case, the State's allegation was intent to commit an assault.
Polson contends the district court should have granted his motion for judgment of acquittal. He claims the State failed to present sufficient evidence to show a specific intent to commit an assault while attempting to enter the residence. He testified he did not have the intent to assault anyone. Polson admitted that he did become angry, and took his frustrations out on the door. He stated, "I wasn't trying to break into their house and hurt nobody. I think that's stupid."
The element of intent in burglary, or attempted burglary, is seldom susceptible to proof by direct evidence. See State v. Sinclair, 622 N.W.2d 772, 780 (Iowa Ct.App. 2000). The factfinder may infer an intent to commit an assault from the circumstances of the defendant's attempted entry into the premises and his acts preceding and following. State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994). The requirement of proof beyond a reasonable doubt is satisfied if it is more likely than not that the inference of intent is valid under the facts of the case. State v. Lambert, 612 N.W.2d 810, 813-14 (Iowa 2000).
A defendant's irate and hostile actions preceding an attempted entry may be evidence of an intent to commit an assault. See Taylor, 689 N.W.2d at 133. Threats of imminent bodily harm or death may also constitute evidence of an intent to commit an assault. Lambert, 612 N.W.2d at 814; Finnel, 515 N.W.2d at 43. The possession of a dangerous weapon may be considered as evidence tending to show an intent to commit an assault. State v. Olson, 373 N.W.2d 135, 136 (Iowa 1985); Sinclair, 622 N.W.2d at 780.
We determine there was sufficient evidence in the record to submit to the jury the issue of whether Polson had the requisite intent to commit an assault. Polson made threats against Berge's sons before he came to her house, and while he was standing near her house. He was armed with a knife. He stabbed the screen door, very close to where William was standing, then broke the glass on the door. Polson admitted his anger with Berge and her sons. We find the jury's verdict is supported by substantial evidence.
We conclude the district court did not err in denying Polson's motion for judgment of acquittal. We affirm Polson's conviction for attempted burglary in the first degree.